New Eu Rules On Maritime Surveillance: Volition They Cease The Deaths As Well As Push-Backs Inward The Mediterranean?

Steve Peers

Introduction

A new European Union Regulation, published today inwards the EU’s Official Journal, sets out novel rules on maritime surveillance too rescue operations coordinated past times Frontex, the EU’s borders agency. What outcome volition these rules create got on reducing the tragic decease terms of migrants inwards the Mediterranean? And what volition come about to the asylum claims of those rescued or intercepted inwards the high seas?

These novel rules are a reply to the continued declaration that the European Union must conduct at to the lowest degree some of the blame for the deaths of migrants inwards the Mediterranean. Furthermore, Member States’ government too Frontex create got frequently been blamed for fierce demeanor or ‘push-backs’: the forced render of migrants’ vessels to dangerous countries, which were condemned past times the European Court of Human Rights inwards its 2012 judgment inwards Hirsi v Italy.

The Regulation replaces prior rules adopted past times the Council lonely inwards 2010, inwards the shape of a Decision implementing the Schengen Borders Code, which was annulled by the Court of Justice of the European Union (CJEU) after the European Parliament (EP) challenged it on procedural grounds. According to the Court, an European Union human activeness concerning human rights too coercive measures had to hold upward adopted past times way of the EU’s legislative process.

That meant that the European Commission had to propose a legislative measure, which it did inwards Apr 2013. At first, a hard-line grouping of Member U.S. opposed most of the provisions inwards this proposal concerning search too rescue too disembarkation (ie the rules on the finish of migrants who were intercepted too rescued), fifty-fifty after the peculiarly tragic loss of 300 migrants’ lives inwards tumble 2013. However, these Member U.S. relented, too the European Parliament also pressed to retain too improve upon the Commission’s proposal.

The novel Regulation was later agreed, too volition come upward into strength on 17 July. But does it hateful that the European Union volition hold upward doing plenty to address the loss of life too push-backs inwards the Mediterranean?

This postal service addresses these issues inwards turn, too concludes amongst an assessment of the number of the accountability of Frontex. It is an updated too amended version of a previous Statewatch analysis on the novel rules.

Search too rescue

The previous Decision contained binding rules on interception, too non-binding rules on search too rescue too disembarkation. However, the CJEU said that fifty-fifty the latter category of rules was binding. As noted above, a grouping of Member U.S. wanted to H2O downwards (as it were) most of these rules inwards the novel Regulation, but was ultimately unsuccessful.

There are novel rules on search too rescue, which retain (at the EP’s behest) the Commission’s detailed proposal on this issue, including peculiarly the Definition of whether vessels tin hold upward considered inwards a province of alert, doubtfulness or distress. Provided that sinking vessels are detected inwards fourth dimension too that these rules are properly applied, the Regulation should thence ensure that migrants are rescued from drowning wherever possible.

Protection too disembarkation rules

On the other hand, the province of affairs is to a greater extent than complex equally regards the rules on protection of those migrants who are potentially at direct chances of persecution, torture or other forms of ill-treatment inwards their province of origin (or some other country).

The inwardness of the novel Regulation is Article iv – the protection against non-refoulement (removal to an dangerous country) too protection of cardinal rights. Article 4(1) states that no-one tin hold upward ‘disembarked in, forced to enter, conducted to or otherwise handed over to’ an dangerous province equally farther defined inwards the Regulation. Compared to the 2010 Decision, the Commission proposal, too the Council position, the EP successfully insisted on adding the words ‘forced to enter’ too ‘conducted to’, which clearly covers push-backs.

What is an dangerous country? Article 4(1) goes on to define 2 situations: (a) a serious direct chances of subjection of the migrant to the decease penalty, torture, persecution or other inhuman or degrading treatment; too (b) the migrant’s life or liberty would hold upward threatened on the grounds laid about inwards the Geneva Convention on Refugees (race, religion, nationality, political sentiment or membership of a social group), equally good equally sexual orientation. Also, a ‘chain refoulement’ is banned: a migrant cannot hold upward handed over to a province which is security inwards itself, but which would paw the migrant over to an dangerous country.

Compared to the criteria inwards European Union asylum police describe (the ‘Qualification Directive’), the source category includes 2 of the grounds concerning the grant of ‘subsidiary protection’ (ie protection for those who create non qualify equally refugees nether the Geneva Convention): the decease punishment too torture or other inhuman or degrading treatment. It does non include the tertiary category, concerning ill-treatment inwards the lawsuit of armed conflict; however, it does include ‘persecution’, without farther definition. The 2nd category is identical to Article 33(1) of the Geneva Convention, except that it does non include the exception inwards Article 33(2) of that Convention for persons posing security threats et al., too it adds the grounds of ‘sexual orientation’ to those referred to inwards the Convention. However, the CJEU has confirmed that homosexuals tin shape a ‘particular social group’ nether the EU’s Qualification Directive.

The 2010 Decision referred only to ‘non-refoulement’ without whatever farther explanation inwards the primary text, spell the 2013 proposal (and the Council’s position) referred alone to the source category of grounds, without the full general reference to ‘persecution’. So the EP clearly succeeded inwards strengthening this provision.

Next, how must an dangerous province hold upward determined? Article 4(2) states that when considering disembarking migrants inwards a tertiary country, the host Member State (the Member State from which an performance takes seat or from which it is launched: Article 2(3)) must ‘take into line organisation human relationship the full general province of affairs inwards that tertiary country’, too cannot disembark or otherwise strength to enter, conduct to or paw over if the host Member State or other participating Member U.S. ‘are aware or ought to hold upward aware’ that such a State presents such a risk. The EP insisted on adding the references to forcing to enter, conducting to or handing over.

The EP also obtained an amendment farther clarifying the sources of information to select into line organisation human relationship – a ‘broad range’, including other Member States, European Union bodies, agencies too offices too international bodies. The Member U.S. ‘may’ select into line organisation human relationship existing agreements too projects carried out using European Union funds.

What are the migrants’ procedural rights? Article 4(3) of the Regulation specifies that (in accordance amongst the Hirsi judgment) earlier disembarking or otherwise conducting, etc the migrants to a tertiary State, taking into line organisation human relationship the full general province of affairs inwards that State, the Member States’ units shall ‘use all means’ to seat the migrants, assess their circumstances, inform them of their finish too give them an chance to object on grounds of the non-refoulement rule. These obligations are discipline to an override inwards the interests of the security of all the persons involved (see Article 3).

The operational conception must ‘where necessary’ furnish for medical staff, interpreters, legal advisers too other relevant experts on shore. Also, the annual reports which Frontex must furnish on the application of the Regulation must include ‘further details’ on cases of disembarkation inwards tertiary States, equally regards the application of the relevant criteria. These provisions were insisted upon past times the EP, inwards exceptional the reference to ‘legal advisers’, but at that topographic point is ‘wiggle room’ conferred past times the words ‘where necessary’ too ‘use all means’.

There are also limits on the central of personal information amongst tertiary countries, an obligation to observe human dignity, too rules on preparation of staff.

The protection rules cannot hold upward separated from the rules on disembarkation of migrants. According to Article 10, at that topographic point are 3 scenarios. First, if migrants are intercepted inwards the territorial bounding main or contiguous zone (the waters side past times side to the territorial sea, according to international law: run into the Definition inwards Article 2(13)) of a Member State, too so they must hold upward disembarked inwards the coastal Member State, ie the Member State inwards whose territorial waters or contiguous zone the performance takes seat (definition inwards Article 2(14)). But this is discipline to a crucial exception: it is possible nether the Regulation that a vessel that has made it this unopen to a Member State could silent hold upward ordered to modification course of study towards some other destination.

Secondly, if migrants are intercepted inwards the high seas, they may hold upward disembarked inwards the province from which they are assumed to create got departed, discipline to the non-refoulement rules inwards the Regulation. If that is non possible, too so disembarkation ‘shall’ select seat inwards the host Member State.

Thirdly, inwards the lawsuit of a search too rescue, the migrants shall hold upward disembarked inwards a seat of safety. If that is non possible, too so they shall hold upward disembarked inwards the host Member State.

These provisions enhance many of import questions. First of all, it should create got been clearly specified that the full general non-refoulement dominion takes priority over whatever possibility of disembarkation inwards a tertiary State.

Secondly, equally correctly noted inwards the preamble to the Regulation, the EU’s asylum legislation applies to anyone inwards the territorial waters of the EU. This way that, inwards accordance amongst that legislation, 1 time an asylum application is made inwards the territorial waters, the asylum applicant cannot hold upward removed to a tertiary State earlier at that topographic point is a determination on the asylum application inwards accordance amongst that legislation, salve for some limited exceptions non relevant here. The obvious corollary of this is that asylum-seekers who brand their application inwards the territorial waters must hold upward disembarked on the territory of the Member State concerned, since it is unlikely that it volition hold upward practical to maintain them on board a shipping for the entire duration of a total asylum procedure. However, the primary text of the Regulation does non reverberate the wording of this legislation, since it provides for the possibility of persons intercepted or rescued inwards the territorial waters to hold upward removed to tertiary countries.

Thirdly, when migrants are disembarked on the territory of a Member State, an awkward query could arise: is that Member State safe? While the specific non-refoulement rules inwards Article 4(2) too (3) lift to the security of third countries, the full general dominion inwards Article 4(1) refers to countries inwards general. The European Court of Human Rights too the EU’s Court of Justice create got already both concluded that Hellenic Republic inwards outcome fails the criterion laid about inwards Article 4, too litigation inwards some Member U.S. is also challenging the security of Italy. So at that topographic point could hold upward a clash betwixt the non-refoulement dominion too the obligation to disembark inwards a Member State which is the host State, coastal State or seat of safety, or inwards the territorial waters of which the applications were made.

Fourthly, equally for those intercepted or rescued inwards the high seas or the contiguous zone (the Regulation does non contemplate the scenario of migrants existence intercepted inwards the territorial waters of tertiary States), the mass of the EU’s asylum legislation does non apply. However, the EU’s qualification Directive does – since at that topographic point is cipher inwards the text of that Directive to bound its territorial scope. But the wording of the Regulation is confusing inwards this regard, since it does non lift to the detailed text of that Directive but rather to full general standards on non-refoulement, which are different from that Directive inwards some respects, equally noted higher upward (the omission of persons fleeing conflict, for instance).

Having said that, European Union rules on asylum procedures too reception conditions create non apply to asylum-seekers who are intercepted or rescued inwards the high seas or the contiguous zone, too inwards that representative the rules inwards the Regulation would apply. In effect, the rules summarised higher upward furnish for a highly simplified physical care for – which powerfulness hold upward dubbed the ‘maritime asylum procedure’ – for such cases. As noted above, though, the words ‘where necessary’ too ‘use all means’ arguably give Member U.S. considerable flexibility non to apply these rules fully, too these rules are (understandably) discipline to the requirement to give priority to the security of all persons. This should hateful that inwards the lawsuit of a direct chances to the security of persons, if the application of the non-refoulement dominion has non yet been assessed, the migrants must hold upward taken to a (safe) Member State to avoid prejudicing the outcome of that assessment. Once the migrants instruct into a Member State’s territorial waters, European Union asylum police describe volition apply fully (arguably it applies fifty-fifty if the application was made before the vessel entered those waters; if not, too so at that topographic point is cipher to halt the asylum-seeker making a renewed application for asylum 1 time the vessel is inwards those waters).

Since most European Union asylum police describe does non apply to the high seas, the EU’s Dublin rules on asylum responsibleness create non apply either, too it is an opened upward query whether they would apply where a someone made an application on the high seas too was too so brought to the territorial waters of a Member State spell the application was existence considered. In social club to bound somewhat the huge touching on of these Dublin rules on the coastal Mediterranean States, European Union Member U.S. could concur betwixt themselves on novel rules for responsibleness for asylum-seekers who brand their application on the high seas. If necessary, this could select the shape of an amendment to the Dublin rules, added to the proposed novel amendment on the application of those rules to unaccompanied minors.

Finally, at the EP’s behest, the preamble to the Regulation clarifies (recital 7) that a shipmaster too crew should non confront criminal sanctions for rescuing migrants too bringing them to a seat of safety. This provision is welcome, but it would hold upward amend if the EU legislation on criminal sanctions for facilitating irregular migration were amended to confirm that at that topographic point is no criminal liability inwards such cases.

Accountability of Frontex (and national authorities)

Article thirteen of the Regulation, which was inserted at the EP’s insistence, states that Frontex must brand annual reports on the application of the Regulation, including on Frontex’s ain procedures too information on the application of the Regulation inwards practice, including ‘detailed information on compliance amongst cardinal rights too the touching on on those rights, too whatever incidents which may create got taken place’. Presumably this way that these reports volition create got to include total information on where migrants were disembarked too the assessments that were made of the security of whatever tertiary countries (and Member States) inwards each exceptional case. It would create got been amend to clarify the extent of these obligations expressly, although whatever provision on accountability is amend than none. The EP also insisted on a recital inwards the preamble, which repeats text already inwards the Frontex Regulation regarding Frontex cooperation amongst tertiary countries. 

When the Frontex Regulation was terminal amended inwards 2011, the EP insisted on many novel provisions ensuring that Frontex would hold upward electrical charge amongst human rights standards, too the application of these novel rules has since been examined by the European Ombudsman. Frontex is silent refusing to works life an private complaints physical care for for migrants who believe that it has violated the rules binding upon it, on the grounds that it alone coordinates Member States’ authorities’ actions, so cannot hold upward held straight responsible for those actions.

While it would hold upward preferable to ensure that individuals could enhance complaints that Frontex had non complied amongst its obligations equally regards human rights, it is also truthful to say that Frontex alone coordinates Member States’ authorities’ actions. In whatever event, those government select actions that are non coordinated past times Frontex. Given that (as the novel Regulation itself implicitly accepts) whatever command of the EU’s external border, including past times way of patrols exterior a Member State’s territorial waters, is linked to the application of the EU’s ain rules on external edge controls, the European Union Charter of Rights is applicable to Member States’ command of those borders. And at that topographic point create got been allegations that Member States’ government create got on some occasions been responsible for push-backs too ill-treatment of migrants at the external borders.

In this context, it is possible that Frontex has been serving for also long equally a ‘lightning rod’ for critics of the EU’s external borders command policy, whereas attending should create got focussed to a greater extent than on Member States’ authorities, whether they are existence coordinated past times Frontex or not. The ‘right to life’ inwards the European Convention of Human Rights entails, according to the European Court of Human Rights, an obligation to care an independent investigation into losses of life that create got arguably resulted from actions of the authorities. So arguably the European Union is nether an obligation pursuant to the European Union Charter of Fundamental Rights to ensure that its Member U.S. conduct such investigations into losses of life which are linked to the implementation of European Union policies, inwards this representative the European Union external borders rules. Those government should also hold upward held accountable for whatever alleged push-backs or other ill-treatment of migrants at the external borders.

To that end, the European Union should concur upon a full general framework for independent investigations into such alleged abuses, amongst the results of these investigations reported too assessed past times the Commission equally component of its twice-yearly written report on the Schengen system. Furthermore, it is long past times fourth dimension for the Commission to stiffen its backbone too to convey infringement proceedings against Member U.S. where at that topographic point is sufficient evidence that their government are responsible for push-backs or other ill-treatment.

Conclusions

The existence of this Regulation is welcome, equally its rules on search too rescue are valuable too its provisions on protection, disembarkation too accountability of Frontex are amend than cipher at all. But the complex interplay of the provisions of this Regulation amongst European Union asylum police describe has led to something of a ‘dog’s dinner’ of rules governing the asylum applications of people rescued or intercepted inwards the Mediterranean, too the rules on the accountability of Frontex are something of a ‘red herring’ inwards low-cal of the allegations of serious misconduct inwards some cases past times national authorities. Finally, the Commission’s continued unwillingness to convey infringement proceedings inwards this expanse (and inwards the confront of its ain documented breaches of other European Union immigration too asylum law) is undermining the missive of the alphabet too spirit of the Charter past times allowing Member States’ government to recall that they tin violate the Charter amongst impunity. 

Further reading: Council of Europe Parliamentary Assembly report, June 2014

UNHCR comments on the Commission proposal

Barnard & Peers: chapter 9, chapter 26

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